Judgment :- 1. This is an appeal by a defeated plaintiff. He was defeated in a suit for malicious prosecution. The short point that arises in the case for decision is that when a complaint was filed on the basis of information about which the complainant himself had personal knowledge and the case ended in acquittal, whether there is a presumption that the defendant had no reasonable and probable cause and that he was actuated by malice in filing the said complaint. Further whether in such circumstances, the burden of proof shifts to the defendant-the complainant in the criminal case and that unless he is able to prove that what he had alleged in the complaint is true, the plaintiff must succeed. Now both the courts found that the plaintiff failed to prove that essential ingredient for establishing a cause of action for malicious prosecution of the absence of reasonable and probable cause for the defendant to launch the prosecution against the plaintiff. 2. The trial court raised mainly three issues touching the obligatory integrants to be established for successfully prosecuting a suit for malicious prosecution. These are the issues: "(1) Whether the complaint filed by the defendant was false? (2) Whether the defendant had reasonable and probable cause for filing a complaint against the plaintiff? (3) Whether the defendant was actuated by malice in lodging a complaint?" 3. Evaluating the evidence in the case, all the above three issues were found against the plaintiff. The suit was dismissed. Plaintiff filed an appeal before the Sub Court, Trichur. The Subordinate Judge mainly considered the question regarding the absence of reasonable and probable cause for filing a complaint against the plaintiff. The court held that the plaintiff did not discharge the onus of proof that there was want of reasonable and probable cause for filing a complaint against the plaintiff. The judgment and decree of the trial court was confirmed and the appeal was dismissed. Now the plaintiff appeals. 4. The general principles in an action for malicious prosecution are easy for formulation. The judgment and decree of the trial court was confirmed and the appeal was dismissed. Now the plaintiff appeals. 4. The general principles in an action for malicious prosecution are easy for formulation. In order that an action shall lie for malicious prosecution, the following conditions must be fulfilled: (1) The proceedings must have been instituted or continued by the defendant; (2) He must have acted without reasonable and probable cause; (3) He must have acted maliciously; (4) The proceedings must have been unsuccessful that is to say must have terminated in favour of the plaintiff now suing. 5. I was invited by the learned counsel for the appellant to deal with the appeal on the basis of the principle laid down in Appukuttan v. Makkappan (1965 K.L.T. 1054) where Madhavan Nair, J. observed thus: "The onus of establishing that the defendant bad no reasonable and probable cause for the prosecution undoubtedly lay on the plaintiffs. If a man acts on his personal knowledge, then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause, and. that malice existed, unless it is shown that his memory was defective, and, that there was some valid ground for misapprehension." In Chamu v. Valayanat Tharayil Chirutha (1970 K.L.J. 1023) Krishna Iyer, J. said: "The absence of reasonable and probable cause is an essential ingredient, the onus of proving which lies on the plaintiff even though it is the assertion of a negative. "If the assertion of negative is an essential part of the plaintiff's case, the proof of assertion still rests upon the plaintiff. The judgment of the criminal court is evidence merely to show that the person prosecuted is out of the criminal woods, if I may say so. It is conclusive as to the prosecution having terminated in favour of the plaintiff. But this is the only use to which the judgment of the criminal court can be put." An apparent conflict can be seen in these two decisions. The matter was referred to a Full Bench. The Full Bench in Subramanya Bhatta v. Krishna Bhatta (1978 K.L.T. 361) did not resolve the conflict. It thought unnecessary in that case to decide that question since there was little difficulty to hold that the absence of reasonable and probable cause has been satisfactorily established in that case. The matter was referred to a Full Bench. The Full Bench in Subramanya Bhatta v. Krishna Bhatta (1978 K.L.T. 361) did not resolve the conflict. It thought unnecessary in that case to decide that question since there was little difficulty to hold that the absence of reasonable and probable cause has been satisfactorily established in that case. But, a reading of the Full Bench would suggest that the Full Bench is more inclined to accept the principle laid down by Krishna Iyer, J. in 1970 K.L.J. 1023. The Full Bench said: "As regards the findings and reasonings of the criminal court, those were mere opinion evidence, and the Civil Court had to reach its findings on the evidence produced before it. The learned judge referred to an earlier decision of a learned judge of this Court in Sekharan Nair and others v. Krishnan Nair (1967 KLJ 967) where the learned judge had examined the judgment of the criminal court and concluded that the acquittal was based on the benefit of doubt. This was after a fairly close study of the evidence of the criminal case as disclosed by the judgment. Krishna Iyer J. pointed out that this was against the mandate of S.43 of the Indian Evidence Act. and that the correct view of the law on this aspect of the matter had been taken in Venkatapathi v. Balappa (A.I.R. 1933 Madras 429), following earlier precedents. We are inclined to agree with this view of the scope and purpose for which alone the judgment in the criminal case can be looked into as evidence in a suit for damages for malicious prosecution. We need not express our final and concluded opinion, as in this case, our conclusions can well be rested on material de hors the judgment of the criminal court." 6. Chandrasekhar Menon, J. had occasion to consider the observations of Madhavan Nair, J. in 1965 K.L.T 1054 in Raman Nayar v. Chathara Nayar (I.L.R 1977 (2) Kerala 233). Chandrasekhara Menon, J. observed: "What is strongly urged before me by Shri. Chandrasekharan is the following proposition. Chandrasekhar Menon, J. had occasion to consider the observations of Madhavan Nair, J. in 1965 K.L.T 1054 in Raman Nayar v. Chathara Nayar (I.L.R 1977 (2) Kerala 233). Chandrasekhara Menon, J. observed: "What is strongly urged before me by Shri. Chandrasekharan is the following proposition. If a man acts on his own knowledge and if he gives information of the commission of an offence committed in his presence and, therefore, the accusation against the plaintiff is in respect of an offence which defendant claims to have seen him committing and the trial ended, on acquittal on the merits, the presumption will be not only the plaintiff was innocent, but also that there was no reasonable and probable cause. In support of this, he relied on Taharat Karim v. Malik Abdul Khaliq (A.I.R 1938 Patna 529), Nagendra Kumar v. Etwari Sabu (A.I.R. 1958 Patna 329), Satdio Prasad v. Ram Narain (A.I.R. 1969 Patna 1027) and Appukuttan v. Makkappan (1965 K.L.T. 1054) Mr. Justice Madhavan Nair who heard the matter in the High Court said that unless there was definite reason to reverse the Munsiff's appreciation of the oral testimony, the appellate court should not have disturbed the Munsiff's findings of fact. The learned judge also placed reliance on the Patna High Court decisions A.I.R. 1938 Patna 529 and A.I.R. 1958 Patna 329, cited supra as well as on another decision of S.K. Das, J. in Darsan Pande v. Ghargu Pande (A.I.R 1948 Patna 167) and observed that the District Judge has erred in his view of the burden of proof and his judgment on the basis of such erroneous view of burden of proof cannot stand. I would be in perfect agreement with the above decision if it goes only to the extent that if the civil court on the basis of the evidence before it comes to the conclusion that the criminal complaint of the defendant was a false one, then as the complaint was filed on the defendant's alleged personal knowledge, the court could draw the presumption that there was absence of reasonable and probable cause and that malice existed. However, if it is to be taken in approval of what is stated in A.I.R. 1938 Patna. However, if it is to be taken in approval of what is stated in A.I.R. 1938 Patna. 529, where it is laid down that when the accusation against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation, I differ." 7. It has to be noted that the decision relied on by Madhavan Nair, J. in 1965 K.L.T. 1054, namely A.I.R. 1938 Patna 529, has been held to be no longer good law by another Division Bench of the Patna High Court consisting of Ramaswamy C.J. and Untwalia J. (as they then were). In Uche Singh v. Nageshwar Prasad (A.I.R. 1962 Patna 478), Their Lordships Ramaswamy C.J. and Untwalia J. held that A.I.R. 1938 Patna 529, is a decision which runs counter and inconsistent with the ratio of the decisions of the judicial Committee in Balbhaddar Singh v. Badri Sali (A.I.R. 192 6 P.C. 46), Pestanji Mincherji Mody v. Queen Insurance Co. (I.L.R. 25 Bombay 332) and Mohammed Amin v. Jogendra Kumar (A.I.R. 1947 P.C.108). 8. In A.I.R. 1926 P.C. 46, Lord Viscount Dunedin said: "In an action for malicious prosecution the plaintiff has to prove that he was prosecuted by the defendant; that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating; that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention of the defendant, and not with a mere intention of carrying the law into effect." 9. Krishna Iyer, J. in Chamu v. Valayanat Chirutha (1970 K.LJ.1023) said thus: "If a person alleges in a complaints or "first information" that a certain offence has been committed by another to his personal knowledge, runs the argument, and the criminal case flowing therefrom fails eventually, a presumption of absence of reasonable and probable cause arises and, further, of malice in the prosecutor. The learned Subordinate Judge has proceeded on this footing relying upon the rulings reported in A.I.R. 1960 Orissa 29 and 1965 K L.T. 1054. The learned Subordinate Judge has proceeded on this footing relying upon the rulings reported in A.I.R. 1960 Orissa 29 and 1965 K L.T. 1054. There are quite a number of other decisions which take this view and I may mention that this is of pivotal significance in an action for malicious prosecution because some High Courts have gone further to hold that if a person gives information to the police which to bis knowledge is false and gives evidence for the prosecution later he may be taken to be the real prosecutor even though he has not taken any other steps in the course of the investigation or in the conduct of the case. Naturally, the impact of an acquittal on the ingredients making up the tort in that species of the information or complaint which alleges personal knowledge of the accuser deserves serious consideration. The logic is that when a person is acquitted in a criminal case his innocence of the charge is established and, if he is innocent, the allegations in the complaint or information making him guilty are untrue. And where those allegations purport to be made by an accuser as within his personal knowledge, the complaint is false. If it is false, obviously it is bereft of reasonable and probable cause and inspired by improper motive. The cornerstone of this edifice is that an acquittal in a criminal court is axiomatically a certificate of innocence. A firstrate fallacy: A conviction follows upon that degree of proof of guilt, which is free from reasonable doubt. If evidence falling short of this exacting standard is all that has been adduced in court, the accused has to be acquitted, be be guilty. In other words, on a mere preponderance of probabilities a criminal court could not even If it would, while a civil court could, even if it would not, bold the charge proved. For, "It is undoubted law that in civil proceedings a finding can and may be rested on the probabilities of the case". (Vide 1960 Kerala 195) criminal court, under pur jurisprudence, is bound to acquit the accused not merely when he is innocent but in every case where the guilt has not been brought home beyond reasonable doubt. For, "It is undoubted law that in civil proceedings a finding can and may be rested on the probabilities of the case". (Vide 1960 Kerala 195) criminal court, under pur jurisprudence, is bound to acquit the accused not merely when he is innocent but in every case where the guilt has not been brought home beyond reasonable doubt. This is part of the public policy of our penal law referred to as the bedrock of criminal law or the golden thread that runs right through our criminal jurisprudence. Better that a hundred guilty person escape rather than one innocent person be convicted: It follows from this policy that courts perforce allow guilty persons to escape because the proof of guilt is not sufficiently rigorous and so an acquittal is not necessarily a judicial negation of guilt." With utmost respect, I agree with the view expressed by Krishna Iyer J in 1970 K.L.J. 1023 and Chandrasekhara Menon, J. in (I.L.R.1977 (2) Kerala 233). 10. I do not feel that the decision of Madhavan Nair, J. 1965 K.L.T. 1054, did hold the broad proposition contended for by the counsel for the appellant that whenever a criminal complaint ends in discharge or acquittal, a suit for malicious prosecution stands 'self condemned'. If I accept this proposition, it would go counter to the well-accepted principles of law accepted by this court as well as by other courts in India and the Privy Council. I venture to say that, it would be a re-writing of the law and if I may say so with great deference and respect, could not have been meant by Madhavan Nair, J. 11. It is fundamental that in the trial of cases in India, courts are bound to apply the Evidence Act without'judicial exceptions and erosions.' The Evidence Act does not permit of using the criminal court pronouncement either acquittal or discharge for purposes other than what are sanctioned by S.43 of the Indian Evidence Act. There is no rule of law in evidence by which the contents of a judgment of a criminal court would become relevant to ascertain whether the acquittal is on the merits or not and further whether it is on account of the weakness of the prosecution evidence or on account of the strength of the defence evidence and so on. 12. 12. It has to be remembered that no action lies for the institution of legal proceedings, however malicious, unless they have been instituted without reasonable and probable cause. Certainly, this is a difficult part of the law and the point to be noted at the forefront is that the burden of proving absence of reasonable and probable cause is on the plaintiff, who thus undertakes the notoriously difficult task of proving a negative. In Abrath v. The North Eastern Railway Company (1882-3) 11 Q. B. 440 at 457, Bowen L. J said: "Ia one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff. The term 'negative' and 'affirmative' are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a person asserts affirmatively as part of bis case, that a certain state of facts is present or is absent, or that a particular thing is insufficient, fora particular purpose, that is an averment which he is bound to prove positively." The same passage was quoted by a Division Bench of this Court in Govindji J. Khona v. Damodaran (1969 K.L.T. 551). 13. Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the proceedings are justified. The terms reasonable and probable are perhaps synonyms. Probabilis causa was an expression which was not unknown. It means primarily provable hence capable of being put to the test hence reliable, approved, right, good, justifiable. Probabilis causa means a good reason a ground of action which commends itself to reasonable men. (Vide-Salmond and Heuston on the Law of Torts-18th Edn. Page 392). 14. Probabilis causa was an expression which was not unknown. It means primarily provable hence capable of being put to the test hence reliable, approved, right, good, justifiable. Probabilis causa means a good reason a ground of action which commends itself to reasonable men. (Vide-Salmond and Heuston on the Law of Torts-18th Edn. Page 392). 14. In Hicks v. Faulkner (1878) 8 QBD.167 at 171, Hawkins J. said: "I should define reasonable and probable cause to be an honest belief in the guilt of the accused, based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed." Lord Atkin, in a judgment concurred in by other members of the House of Lords observed that he knew of no better statement than what has been said by Hawkins, J. (Vide Herniman v. Smith (1938) A. C. 305). 15. It is clear that the defendant is not required to believe that the accused is guilty. It is enough that if he believes there is reasonable and probable cause for the prosecution, and he need only be satisfied that there is a proper cause to lay before the court. In Glinski v. Melver (1962 A. C. 726), Lord Denning said: "A prosecutor need not be convinced of the guilt of the accused; he need only be satisfied that there is a proper case to go before the court. He must have reasonable and probable cause in fact and not merely think that he has." Lord Devlin observed: "Reasonable and probable cause means that there are sufficient grounds for thinking that the accused was probably guilty but not that the prosecutor necessarily believes in the probability of conviction; he is only concerned with the question whether there is a case fit to be tried. Objectively there must be reasonable and probable cause for the prosecution, and the prosecutor, must not disbelieve in his case, even though he relies on legal advice." 16. Objectively there must be reasonable and probable cause for the prosecution, and the prosecutor, must not disbelieve in his case, even though he relies on legal advice." 16. I am of the view that the judgment of the criminal court acquitting the plaintiff will not be sufficient to discharge the burden of proving that there is no reasonable and probable cause for instituting a criminal complaint, even if the criminal complaint has been filed on the personal knowledge of the defendant-complainant. The rationale for it is not far to seek. The fundamental point which appears to me is that an acquittal by a criminal court is not a litmus test or sure index of the innocence of the person acquitted. This is because a criminal court requires a high standard of proof for convicting an accused. The case must be proved beyond reasonable doubt. The acquittal of an accused by a criminal court only suggests that the case against the accused has not been proved against him beyond reasonable doubt. Denning J. in Miller v. Minister of Pensions (1947) 2 All E. R.372 when dealing with the requirement of the degree of cogency in a criminal charge before the accused is convicted, said: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least possible the case is proved beyond reasonable doubt, but nothing short of that will suffice." Again Lord Denning said regarding the degree of cogency which the evidence must reach in order that it may discharge the legal burden in a civil case, thus: "That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not', the burden is discharged, but if the probabilities are equal, it is not." In Reffek v. Moelroy (1964-1965112 C. L. R.517) the Australian High Court said: "The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: sen Helton v. Allen (1940) 63 C.L.R. 691". 17. The object of criminal law and the modality of its enforcement, through criminal proceedings is totally different from the civil proceedings. In criminal proceedings, a degree of certainty certainty beyond reasonable doubt-is required to find a person guilty of the offence charged. Reasonable probability that the accused should have committed the offence is inconsequential to find the accused guilty of the offence. A strong preponderance of probability of the guilt of the accused will never end in conviction. A criminal proceeding is intended to penalise persons who have broken the 'King's peace' and thus to show the ire and righteous indignation of the community to criminals. 18. Further the fundamental principle governing criminal justice is that the State would allow a score of real offenders to escape rather than see a single innocent man convicted. So it is dangerous to treat an acquittal by a criminal court as conclusive of the innocence of the accused. From the judgment acquitting the accused, it can be said reasonably that the prosecution case "may be" false. But it is difficult to conclude that the prosecution case "must be" false for there is a long span between "may be" and "must be". An abrupt conclusion from "may be" to "must be" without additional supporting clinching circumstance is a judicial risk. 19. But it is difficult to conclude that the prosecution case "must be" false for there is a long span between "may be" and "must be". An abrupt conclusion from "may be" to "must be" without additional supporting clinching circumstance is a judicial risk. 19. In a suit for malicious prosecution, the civil court has to consider independently and come to a conclusion from the evidence before it that all the necessary desiderata including want of reasonable and probable cause for establishing a claim for malicious prosecution are present. Then only a decree can be given. In 1977 KLT SN Page 7, this court held: "It is well known that in a case for malicious prosecution, the plaintiff has to prove on the strength of his own evidence the absence of reasonable and probable cause on the part of the defendant in launching the prosecution and existence of malice on his part. Regarding the criminal case, the mere fact of discharge or acquittal is not sufficient to grant a decree for malicious prosecution." 20. From the facts revealed in the case, it is seen that the plaintiff had gone to the house of the defendant on 9-6-1974 and the defendant had made a complaint to the police on the same day. Plaintiff had also made a complaint against the defendant and that was the subject-matter of the criminal charge against him, namely, C. C. No. 556/74 of the Court of the Sub Divisional Magistrate, Kunnamkulam. Ext. B1 is the certified copy of the judgment in C. C. No. 556/ 74. It can be seen from this judgment that the defendant was acquitted on the ground that the offence against him had not been proved. From the evidence it is clear that there are certain other criminal and civil cases between the parties and the relationship had been sufficiently strained to make the incident complained of possible. True, the plaintiff has to prove a negative in the strict sense of the term in regard to want of reasonable and probable cause. Nevertheless, he could have proved the relevant and attendant circumstances which would have given some objective suggestions for the court to consider whether there was lack of reasonable and probable cause for the defendant to institute a criminal proceeding against the plaintiff. Nevertheless, he could have proved the relevant and attendant circumstances which would have given some objective suggestions for the court to consider whether there was lack of reasonable and probable cause for the defendant to institute a criminal proceeding against the plaintiff. The plaintiff has stated that he and his wife had gone to the house of the defendant on the crucial date to see his grand-mother who was said to have been very seriously ill and when he was about to get into her room, the defendant caught hold of him and fisted him on the nose resulting in bleeding injury. But the plaintiff did not attempt to prove any of these circumstances. He did not even examine his wife. The appellate court has considered all these aspects of the matter and carefully evaluated the evidence given by the plaintiff and the defendant and recorded a finding that the plaintiff had not succeeded in proving that the defendant had no reasonable or probable cause for setting the criminal law in motion against the plaintiff. I see no reason to differ from the findings of the courts below. In the result, this appeal has to be dismissed. I do so. No order as to costs.